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of care and vigilance, evinces its dangerous character, and might in some localities render it a private nuisance. In such a case, the rule which exonerates a party engaged in a lawful business, when free from negligence, has no application. The keeping or manufacturing of gunpowper or of fire-works does not necessarily constitute a nuisance per se. That depends upon the locality, the quantity, and the surrounding circumstances, and not entirely upon the degree of care used. In the case at bar, it should have been left for the jury to determine whether from the dangerous character of the defendant's business, the proximity to other ouildings, and all the facts proved upon the trial, the defendant was chargeable with maintaining a private nuisance and answerable for damages arising from the explosion.

A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another: 3 Bl. Com. 216. Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and renders the owner or possessor liable for all damages arising from such use: Wood's Law of Nuis., § 1, and authorities cited. The cases which are regarded as private nuisances are numerous, and the books are full of decisions holding the parties ans werable for the injuries which result from their being maintained. The rule is of universal application that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor or of his neighbors, even in the pursuit of a lawful trade: Aldred's Case, 9 Coke, 58; Brady v. Weeks, 3 Barb. 159; Dubois v. Budlong, 15 Abb. 445; Wier's Appeal, 74 Pa. St. 230.

While a class of the reported cases relate to the prosecution of a legitimate business, which of itself produces inconvenience and injury to others, another class refers to acts done on the premises of the owner, which are of themselves dangerous to the property and the persons of others who may reside in the vicinity, or who may by chance be passing along or in the neigborhood of the same. Of the former class are cases of slaughter houses, fat and offal boiling establishments, hog styes, or tallow manufactories, in or near a city, which are

offensive to the senses and render the enjoyment of life and property uncomfortable: Catlin v. Valentine, 9 Paige, 575; Brady v. Weeks, 3 Barb. 157; Dubois v. Budlong, 15 Abb. 445; Rex v. White, 1 Burr. 337, 2 Bl. Com. 215; Farrand v. Marshall, 21 Barb. 421. It is not necessary in these cases that the noxious trade or business should endanger the health of the neighborhood. So also the use of premises in a manner which causes a noise so continuous and exclusive as to produce erious annoyance, or vapors or noxious smells: Tipping v. St. Helen's Smelting Co., 4 B. & S. (Q. B.), 608; Brill v. Flagler, 23 Wend. 354; Pickard v. Collins, 23 Barb. 444; Wood's Law of Nuis., § 5; or the burning of a brick kiln, from which gases escape which injure the trees of persons in the neighborhood: Campbell v. Seaman, 63 N. Y. 568. Of the latter class also are those where the owner blasts rocks with gunpowder and the fragments are liable to be thrown on the premises and injure the adjoining dwelling houses, or the owner or persons there being, or where persons traveling may be injured by such use: Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; Pixley v. Clark, 35 Id. 520.

Most of the cases cited rest upon the maxim "sic utere tuo," etc., and where the right to the undisturbed possession and enjoyment of property comes in conflict with the rights of others, that it is better, as a matter of public policy, that a single individual should surrender the use of his land for especial purposes injurious to his neighbor or to others, than that the latter should be deprived of the use of their property altogether, or be subjected to great danger, loss and injury, which might result if the rights of the former were without any restriction or restraint.

The keeping of gunpowder or other materials in a place, or under circumstances where it would be liable, in case of explosion, to injure the dwelling houses or the persons of those residing in close proximity, we think, rests upon the same principle, and is governed by the same general rules. An individual has no more right to keep a magazine of powder upon his premises which is dangerous, to the detriment of his neighbor, than he is authorized to engage in any other business which may occasion serious consequences.

The counsel for the defendant relies upon the case of The People v. Sands, 1 J. R. 78, to sustain the position that the defendant's business was neither a public nor a private nuisance. That was an indictment for keeping a quantity of gunpowder near dwelling houses and near a public street; and it was held (SPENCER, J., dissenting,) that the fact as chared did not amount to a nuisance, and that it should have been alleged to have been negligently and improvidently kept. It will be seen that the case was disposed of upon the form of the indictment, and while it may well be that an allegation of negligence is necessary where an indictment is for a public nuisance, it by no means follows that negligence is essential in a private action to recover damages for an alleged nuisance. In Myers v. Malcolm, 6 Hill, 292, it was held that the act of keeping a large quantity of gunpowder insufficiently secured near other buildings, thereby endangering the lives of persons residing in the vicinity, amounted to a public nuisance, and an action would lie for damages where an explosion occurred causing injury. NELSON, Ch. J., citing The People v. Sands, supra, says: "Upon the principle that nothing will be intended or inferred to support an indictment, the court said, for aught they could see, the house may have been one built and secured for the purpose of keeping powder in such a way as not to expose the neighborhood;" and he cites several authorities which uphold the doctrine that where gunpowder is kept in such a place as is dangerous to the inhabitants or passengers it will be regarded as a nuisance. The case of The People v. Sands is not, therefore, controlling upon the question of negligence.

Fillo v. Jones, 2 Abb. (Ct. of Ap. Dec.) 121, is also relied upon, but does not sustain the doctrine contended for; and it is there held that an action for damages caused by the explo sion of fireworks may be maintained upon the theory that the defendant was guilty of a wrongful and unlawful act, or of default, in keeping them at the place they were kept, because they were liable to spontaneous combustion and explosion, and thus endangered the lives of persons in their vicinity, and that the injury was occasioned by such spontaneous combustion and explosion.

It is apparent that negligence alone in the keeping of gun

powder is not controlling, and that the danger arising from the locality where the fireworks or gunpowder are kept is to be taken into consideration in maintaining an action of this character. We think that the request to charge was too broad, and properly refused. The charge, however, should have been in conformity with the rule herein laid down, and for the error of the judge in the charge, the judgment should be reversed and a new trial granted with costs to abide the

event.

All concur.

Judgment reversed.

'PENNSYLVANIA COAL Co. v. SANDERSON ET UX.

(94 Pennsylvania State, 302. Supreme Court, 1880.)

2 Custom of polluting streams. A coal company pumped from its mines water which found its way into and polluted a previously pure stream. In an action against the company for damages, by a riparian owner of the stream: Held, that the fact that coal mining is an important industry would not relieve the defendant from liability, and that it could not justify its action on the ground that the customary mode of disposing of water pumped from mines in the coal regions was to allow it to flow into the adjacent natural watercourses, as such usage lacked the necessary age to establish a general custom, and such a custom would not only be unreasonable but unlawful.

Error to the Court of Common Pleas of Lackawanna County.

Trespass on the case, by J. Gardner Sanderson and wife, in right of said wife, against the Pennsylvania Coal Company, to recover damages for the alleged corruption of a stream of water used by plaintiff, by reason of the working of the colliery of defendant.

In 1868 the plaintiffs purchased a tract of land within the limits of the city of Scranton, on which they erected a handsome residence and other improvements, at a cost of about $80,000. A stream of water called "Meadow Brook" flows

'S. C. on former appeal, 11 M. R. 60.

2 The Debris Cases, note 11, post p. 97.

through this tract, and before its purchase Mr. Sanderson traced it to its source, and it was, it appeared, one of the principal inducements to the purchase made by him. The stream was about an average width from its source to the house of plaintiffs. The water, when the stream was examined by Mr. Sanderson, was perfectly pure. Dams were built across the stream by Mr. Sanderson for the purpose of fish and ice ponds, and to supply a cistern, and the water was carried in pipes from the cistern to a ram and thence forced to a tank in the attic of the house. After these improvements were made the defendant opened a coal mine on the side of a hill about three miles above the house of the plaintiffs. A drift was first made into this mine and a shaft afterward sunk. The water which collected in this drift, as well as that pumped by engines from the shaft, ran into the creek. It was alleged that the effect of the water from the mine was to corrupt the water of the stream so as to unfit it for domestic use. There was evidence that the fish in the brook were destroyed; that the willows along the bank died; that the pipes connecting the stream with the cistern, the ram and the house, were corroded and eaten out; that the water was unfit for household use in 1873, and that in 1875 its use for all purposes was abandoned. No change was made in the appearance of the water, but it was conceded that it was acid and unfit for use.

At a former trial in Luzerne county, the court granted a compulsory nonsuit, which judgment this court reversed (see 5 Norris, 401), and a new venire having been awarded, the suit was transferred to Lackawanna county on the creation of said county.

At the trial, before HANDLEY P. J., the defendant offered to show by the witness on the stand and other witnesses, that it was mining coal from its mines upon this stream, and making such disposition of the mine water from its mines as, according to custom and common consent, has been the mode ever since coal mining was begun and in the mode that the memory of man runneth not to the contrary. It proposed to show a custom for the whole anthracite coal region in Lackawanna and Wyoming.

Objected to, and objection sustained. (2d assignment of error.)

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